International Law and the War in Gaza: from fog of war to fog of lawJuan Amaya CastroThe Gaza War (December 2008 - January 2009) left 1,166 to 1,417 Palestinians and 13 Israelis dead. Professor Juan Amaya Castro discusses the conflict with reference to sources of international law.

CALCULATED
RAGE - CALCULATED MADNESS

International
Law and the War in Gaza: From
the Fog of War to the Fog of Law

Juan
M. Amaya-Castro 26
January 2009 University
for Peace

The
Israeli theory of what it tried to do here is summed up in a Hebrew
phrase heard across Israel and throughout the military in the past
weeks: “baal habayit hishtageya,” or “the boss has lost it.”
It evokes the image of a madman who cannot be controlled.

“This
phrase means that if our civilians are attacked by you, we are not
going to respond in proportion but will use all means we have to
cause you such damage that you will think twice in the future,”
said Giora Eiland, a former national security adviser.

It
is a calculated rage. The phrase comes from business and refers to a
decision by a shop owner to cut prices so drastically that he appears
crazy to the consumer even though he knows he has actually made a
shrewd business decision.

(…)

Shlomo
Brom, a researcher at the Institute for National Security Studies at
Tel Aviv University and a retired brigadier general, said it was
wrong to consider Hamas a group of irrational fanatics.

“I
have always said that Hamas is a very rational political movement,”
he said. “When they use suicide bombings, for example, it is done
very consciously, based on calculations of the effectiveness of these
means. You see, both sides understand the value of calculated
madness. That is one reason I don’t see an early end to this
ongoing war.”
(1)

1.
The War in Gaza: Irrationality and Lawlessness?

Listening
to many of the reactions that have been voiced in response to the
horrible events in the Gaza strip, it would seem that many people
consider what is going on there to be ‘irrational’. Indeed, the
pictures we see, the stories we read, make it difficult to believe
that all that is happening there, the bombs, the destruction, the
civilians that are killed, that any of that could be in some way
obeying some type of rationality. Not just is it easy to consider it
all irrational, it is also easy to consider it a prime example of
‘lawlessness’. Many reactions that I have heard, and some have
been communicated directly to me in my role as professor of
international law, indicate that the war in Gaza is seen as an
example of lawlessness, as evidence of the failure of international
law and its international legal institutions.

People
have expected many things from international law and from
international institutions. And more often than not, they have been
disappointed. International law, the law of the international
community, its institutions, they all seemed relatively powerless –
visible through their powerlessness. As we will see below, the war
effort obeyed its own rhythm, and nothing much seemed to be able to
be done. When the warring parties finally ceased fire, it seemed for
many reasons that were not related to international law and its
institutions.

2.
The Law Behind the Scenes in Gaza

Seen this way,
international law would indeed seem helpless. War criminals would
seem to get away with their war crimes. Victims would have no
recourse. The killing could just go on without anything being done to
stop it. The various international institutions, all the courts,
national and international, seem helpless and this helplessness is
seen to be the helplessness of international law in general.

However, from
another perspective, law springs very much alive. The irrationality
that we want to see in the war is not always seen by those who
carefully study the war and the motives and decisions taken by the
warring parties. Military and Political experts have called the
reaction by Israel to the rocket attacks by Hamas 'Calculated Rage',
in other words, a deliberate strategy that aims to be seen to
overreact, but that is in fact a very controlled action. Likewise,
other experts have referred to the tactics and strategies of Hamas as
'Calculated Madness', again referring to a deliberate attempt to seem
unpredictable and even suicidal, while in fact being carefully
selective in the risks they take. The rage and the madness are here
described as part of a strategy - as part of a very rational scheme
and set of calculations about intentionality and causality.

Law
first appears as part of the strategic landscape of all actors
involved. And I am not merely talking of law in terms of the very
specific binding and non-binding rules. I am referring to the general
picture of rules and principles, legal and moral, as well as the
broader set of institutions, legal, political, and other, which
includes the media and the 'international court of public opinion'.
Paradoxically, in our age in which weapons have achieved a degree of
unparalleled precision and destructiveness, wars are as much about
perception than they are about physical military victory and defeat.

To fight this
modern war, political and military strategists employ various forms
of expertise. Media expertise and political strategy are as essential
as knowledge of the physical and geographic terrain. The U.S.
military has invested heavily in the last couple of years in the
development of the so called 'human terrain' expertise, which
involves deploying cultural anthropologists in the various levels of
military planning and operations. In the same way, legal expertise
and general knowledge of legal avenues and procedures are an
essential part of any modern military machine. In fact, the Israeli
army deploys hundreds of lawyers, many of them with a high level of
expertise. Israeli military manuals have been prepared with the
assistance of the UN and the ICRC and are generally considered to be
of a very high legal quality in terms of the way that they
incorporate the principles of International Humanitarian Law (IHL)
into every aspect of their operations. Israeli military lawyers
participate in the various levels of military decision-making, and
the Israeli army is heavily equipped with state of the art technology
that allows it to be precise in its attacks and to wage a legally
clean war. The legal expertise allows them to expand the grey area
left open by the rules, and to do things that, even though they can
be questioned, can also be defended by reference to the rules.

To
the point that Israel has at times committed clear violations of the
rules of war, this may be explained by a deliberate calculation that
takes into account the weak enforcement mechanisms of international
law and the seemingly unconditional support of western countries. In
other words, law, and the political context in which law exists, can
be said to be a central part of Israeli military calculations.

But,
Hamas too can be said to take law (and the political, moral and media
context in which law operates) as the starting point of their
strategic calculations. Though Hamas does not have the same amount of
legal expertise or the technical capacity to carry out high precision
bombings, this does not mean that it is not aware of the legal
terrain on which the battle takes place. The thing that Hamas can
do, in this very asymmetrical military and political struggle, is to
radically affect the Israeli strategic terrain, which includes the
legal one. One way in which Hamas can be seen to be doing this is by
hiding their weapons in areas with a high density of civilians, in
the vicinity of schools and around the proximity of UN buildings. By
doing this they make it more difficult for Israel to apply the
principle of distinction, under which military attacks must
distinguish between military targets and civilian ones, and avoid the
civilian ones. It also makes it more difficult for the Israelis to
abide by the rule that all efforts must be undertaken to avoid
civilian casualties, even when targeting military objectives.

In
this way, they raise the cost of military attacks for Israel, not
just in terms of the efforts made trying to play by the rules, but in
terms of the political, moral, and potential legal costs of causing
large numbers of civilians to die. Here too, Hamas may at times
choose to disregard clear rules, and here too the calculation can be
traced to broad considerations that include the political and media
context in which the legal rules operates, as well as the deficient
enforcement mechanisms. As far as the costs in human lives is
concerned, Hamas may have been taking a cue from Hezbollah, which two
years ago was able to claim some sort of victory amidst the rubble
and destruction, and the hundreds of civilian casualties.

From
this perspective, international law, in spite of the best intentions
of its drafters, operates as a terrain that can be played out in ones
advantage. Even so, most of the attention goes to law's helplessness,
as is evidenced by the responses in the formal legal institutions.

3. The
International Legal & Institutional Response

International
lawyers all over the world have been doing a lot of work, talking about the legality of the whole war, as well
as the legality of the various individual armed actions that have
been a part of this war. The issues are complex: is Gaza an occupied
territory? Who is in control there? If it is not an occupied
territory, then what is it, since it is not a sovereign state? Does
all this matter at all? Each and every one of these questions has
international lawyers typing away like crazy - and for each one there
are strong positions, one way or another.

Meanwhile,
people have looked to the various international legal institutions
and their attempts to deal with the situation:

-
The United Nations Security Council passed a resolution: Resolution
1860 (2009), which calls on all parties to respect civilian lives and
to stop the fighting and resolve their issues peacefully. This
resolution, miraculously passed with a US abstention, has been found
to be too soft on Israel by some and to hard on Israel by others.
More significant however, it does not seem to have had any effect on
the hostilities of either side.

-
The UN General Assembly joined the action, in a special emergency
session, and adopted a resolution more or less along the lines of the
UNSC's one. Even though UNGA's resolutions are not binding, this one
elicited the same response: widespread support from most, strong
rejections from the parties involved: too soft on Israel, too hard on
Israel; and the same effect: non that can be discerned.

-
There is talk of the UN General Assembly requesting the International
Court of Justice to pronounce itself on the matter in a so-called
Advisory Opinion, such as it earlier did in relation to the Wall that
Israel was building in the West Bank. However, not only are these
Opinions of a non-binding nature (in spite of their significant
authority), but the last one was easily ignored by Israel (and its
allies).

- The UN
Human Rights Council had previously asserted itself through another
non-binding resolution, in which it strongly condemned Israel and
decided to dispatch a fact finding mission to verify how the human
rights of the Palestinian population had been violated. So far, it is
unclear that the fact finding mission has been deployed. In any case,
the resolution had no immediate effect.

Since
non of these 'actions' did anything to stem the violence, in any
apparent way, attention among international lawyers and human rights
activists has turned in another direction, a very popular one lately.
The idea: war crimes committed by Israel need to be punished. Many
ideas about this have been floated around:

-
Let the International
Criminal Court (ICC) spring into action.
It could do so, but it is unlikely. The only way that it could happen
is through a UNSC resolution. Such a resolution however, is unlikely,
and it will remain unlikely even after Obama's government springs
into action. The US will just not support it - and probably others
too...

- Let's
establish a special international tribunal, a War Crimes Tribunal.
Not a very original idea, and not very likely to happen. Special
tribunals so far have been established by the UNSC. Moreover, even if
it was somehow done differently, there would be the problem of making
it happen. How can you give this tribunal access to the area, and how
could it ever do its work without Israeli cooperation, let alone
without US support?

-
Some Israeli Human Rights NGOs have initiated legal proceedings
before Israeli courts. Now, Israeli courts are not as biased as some
people might suspect. They have, at times, posed a significant
instrument of restraint and accountability on Israeli use of raw
power. However, in this type of situations, as was seen two years ago
during and after the war in Southern Lebanon, against Hezbollah,
their track record is that they will be very understanding and
empathic of what the Israeli Defense Forces have done in the Gaza.
Again, not that much can be expected from this option.

-
As the cease fire seems to be taking effect, some people in Israel
are preparing for the next round in the ongoing war. Not warfare, but
lawfare, as it has been called. Weakening your opponent, perhaps even
defeating him/her by means of legal proceedings in courts and other
types of litigation. The main instrument in this type of action is
socalled trans-national adjudication. In other words, bringing cases
before other national courts, in particular in the U.S., in the U.K.,
but also in other countries (Spain, France, The Netherlands, Belgium,
etc.). Unsuspecting Israeli officials might find themselves tried in
any of these countries. Cases could be either of a criminal nature,
aimed at imprisoning the suspects. They could also be of a civil law/
tort -nature, aiming at demanding large quantities of financial
compensation. It is clear that various NGOs and other groups will be
trying to get their courts to initiate proceedings. But, will these
courts accept these cases? What about jurisdiction? What about
immunity? Well, apparently some Israeli officials are not taking any
chances, but whatever happens in this area, it will be a far cry from
a comprehensive legal accountability for the various alleged war
crimes.

4.
The Pursuit of Justice through Law... and its limitations

But,
is it a good idea to pursue the objective of criminal prosecutions?
How much do these legal instruments offer anyway? How clear are the
rules that have allegedly been breached? What can international law
really offer to the thousands of victims and their survivors? In this
section, I want to highlight a number of limitations offered by
international humanitarian law and by international criminal law for
the achievement of the justice and accountability that many of us
would like to see.

1)
IHL and ICL have achieved significant results in the past, but in
different types of situations. The crimes that were tried in
Nuremberg and Tokyo, as well as the growing number of convictions
that have come from the ad hoc tribunals (Yugoslavia and Rwanda), and
the so-called hybrid tribunals (Sierra Leone, Cambodia, etc.), to the
extent that these have been successful, have mostly been of a
different nature than what has been seen so far in the Gaza war. The
convictions were for large scale and systematic massacres, mass rape
and the attempt to systematically exterminate a particular group of
people. In the case before us it is a very different situation, with
armed groups attacking each other while civilians are caught in the
middle. As we will see below, these are much more difficult to deal
with.

2) It is
extremely unlikely, though not unthinkable, that the military actions
of a country that enjoys the strong support of the U.S. as well as
from the large majority of Western countries will be brought to some
form of international legal prosecution. The political and
institutional context in which these rules operate will make it a
very arduous legal battle indeed. Unfortunately, various examples of
this type of lack of accountability precede the Gaza war.

3)
Many of the violations of international humanitarian law (such as the
use of certain weapons or the lack of adequate precautions when
targeting military objectives) will not lead to the finding of
individual responsibility; rather only state responsibility, which
under international law does not carry a specific penalty or even
punishment. At best, Israel might be under the obligation to pay some
form of financial compensation or reparation. Though better than
nothing, it is very different from the justice that is now pursued in
human rights quarters. Moreover, the same unlikeliness applies here
as well.

4) There
is a precedent (involving the war between Ethiopia and Eritrea) in
which an international (pseudo) judicial body looked into the
question of state responsibility for violations of international
humanitarian law, but was forced to find most of the allegations void
for lack of evidence. This brings us to the point that this type of
proceedings is often very costly and difficult.

5)
Though there may be a couple of alleged violations of international
law that can be ascertained through (independent) fact finding
missions, many of them will get stranded in the ambiguity of the
legal rules that relate to warfare. Here is a list of challenges:

-
Under international
humanitarian law one would need to demonstrate that the Israeli
Defense Force (IDF) actually targeted civilians. This is extremely
difficult to demonstrate and it would require a very serious
cooperation on behalf of the IDF itself, in order to ascertain what
happened exactly.

-
If civilians were killed,
one would have to demonstrate that adequate measures were not taken
to limit the number of civilian casualties. The thing is,
international humanitarian law completely allows the killing of
soldiers, even if this would cause civilian casualties. However, the
military is expected to at least try to limit these, as long as it
does not jeopardize its military campaign. The way that this is
referred to is that there needs to be a balance between humanitarian
considerations and military necessity. However, it is unclear how one
can measure whether, in a particular instance, amidst incredibly
complex circumstances, the right balance was made. In particular, the
IDF has demonstrated that it can talk the language of this balance –
so they will argue forcefully that they did do the effort. In any
case, negligence or a weak effort in making this balance, though it
might lead to state responsibility, would probably not qualify as a
war crime.

-In some cases it
might be possible to make a case, such as in the UN operated school,
where dozens of civilians died in an IDF attack. However, even there,
there are various different versions, and it is not clear who would
have the burden of proof in a court of law. Here too it would
probably be easier to find the state of Israel responsible, and more
difficult to find individual IDF commanders responsible.

-Other, fairly ‘easier’
cases involve the use of phosphorus bombs by the IDF. Here the facts
are easier to ascertain and here too the situation is slightly easier
to qualify. There are clear limitations about the circumstances in
which these weapons can be used, so it would be easier to demonstrate
that an unlawful decision was made. However, here too the
responsibility will likely end up on the state, and not on the
individual persons.

-The problem underlining
this whole exercise is that things in Gaza got really complicated.
Urban warfare, with the intensity with which it happened, can test
the wits of the hardest and best trained fighters. Accidents happen,
all the time. Weapons fail, intelligence systems confuse, and people
misunderstand each other’s communications, all the time. Evidence
of this is the fact that at least four of the Israeli military
casualties were caused by so-called ‘friendly fire’. It is clear
that in a war situation a lot of things happen that are not meant to
happen.

All the
complexities, the confusion, the sensory overload, the stress, and
even how the mind deals with these experiences after the fact, all
this is often referred to as ‘the fog of war’, and it
communicates the difficulty to maintain your wits about during
battle. However, in my opinion, the rules and procedures available
are filled with unavoidable ambiguity and will lead the clarity of
moral outrage to go astray in the fog of law.

Since March 2004, I have been working as Co-director of the Department of International Law, and head, together with Gudmundur Eiriksson, the two Masters Programmes: “International Law and the Settlement of Disputes” and “International Law and Human Rights”. I first came to UPEACE in September 2003 as a visiting professor to teach part of the general introductory course on international law.
In my current capacity I am responsible for general management and further development of our two programmes, planning of the curriculum and academic calendar, and overall functioning of the department. I will be teaching in the general foundational courses, and also in some of the specialized courses in our programmes, as well as in other UPEACE programmes. I will also supervise many of the independent studies with which students conclude their ten month programme.
Before coming here and while working on my Ph.D. dissertation on the public/private distinction in human rights discourse, I lectured on both international law and human rights at a number of Dutch universities. I plan to defend my dissertation soon at Erasmus University in Rotterdam. Prior to assuming this position I spent six months as a visiting researcher with the European Law Research Center at Harvard Law School.
My research interest generally concerns the integration of contemporary thought on power, knowledge, subjectivity, and language with our thinking about international law and human rights.